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Apr 16, 2023 •283 likes •365 views

Review of the Year 2019 Jennifer Cashman Employment Group C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Overview 1. Working Time Developments 2 0 2. Retirement Ages & Auto Enrolment 1 3. Independent Contractor

  1. Review of the Year 2019 Jennifer Cashman Employment Group C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Overview 1. Working Time Developments 2 0 2. Retirement Ages & Auto Enrolment 1 3. Independent Contractor Arrangements 9 4. Family Leave and Budget 2020 C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Working Time Developments European Communities (Organisation of Working Time) (General Exemptions) (Amendment) Regulations 2018. Exemptions from certain categories of the 1997 Act now apply to those engaged in “the caring for or the rearing or the breeding or training of racehorses”. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 1

  2. Working Time Developments • WRC has reported that 13% of complaints received last year related to working time. • CCOO v Deutsche Bank SAE - 14 th May 2019. • “objective, reliable and accessible system enabling the duration of working time worked each day by each worker to be measured.” • Any " economic considerations " or costs associated with putting such a system in place cannot undermine the " effective protection of the safety and health of workers C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Working Time Developments • Right to Disconnect? • EU Directive on Work-Life Balance. • Right to request flexible working – legislation required before August 2022. • Four day working week? C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Retirement Ages C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 2

  3. Retirement Ages - Context • National Risk Assessment 2019. • Ireland – significant risk – ageing population. • Pension related expenditure – increasing spending falling to a diminishing share of the population. • Number of persons at State pension age and older will more than double from 586,000 in 2015, to 1,402,000 by 2055. • Ireland also has a very low level of private pension coverage – 35% of private sector. • Importance of policy responses. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Law Relating to Retirement Ages • Public Service Superannuation (Age of Retirement) Act 2018. • Employment Equality Acts – s. 34(4). • Equality (Miscellaneous Provisions) Act 2015. • Concept of “objective justification”. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Retirement Ages Willis Towers Watson - Retirement Age Survey - February 2019. Objective Justifications • Intergenerational fairness (allowing younger workers to progress) 5%. • Motivation and dynamism through the increased prospect of promotion 39% • Health and safety 50%. • Creation of a balanced age structure in the workforce 39%. • Personal and professional dignity (avoid incapability issues with older employees) 30%. • Succession planning 71%. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 3

  4. Case Law Examples A Gatekeeper v A Rail Company – January 2019 • Contract stated retirement at age 70. • Subsequently joined the pension scheme – retirement at 66. • Complainant was part of the national negotiating committee. • Upset and poor communication referenced. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Case Law Examples Judy Bamford v Citizens Information Phone Service Limited – May 2019 • Contract, policy and handbook – 65 years. • Facility to seek extension to 66 years. • Refused – promotional prospects. • Appeal – one year fixed term contract. • Claim failed – due to documentation and acceptance of fixed term contract. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Case Law Examples Sales Advisor/Mechanic/Department Manager v DIY Electrical Retailer – May 2019 • 65 years retirement – pension docs. • General health and safety concerns – profound. • €18,000 compensation for age discrimination. • Adjudicator ordered the Respondent to incorporate and honour the terms of the WRC’s Code of Practice on Longer Working, into the Staff Handbook within three months of the decision. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 4

  5. Case Law Examples James Peter Maloney v Ability West CLG • CV, driving license and his driving qualification card - 65 years of age. • The Complainant was successful in his application and accepted the offer for the position in June 2017. • Vetting Form – Respondent realised age and revoked offer. • Policy does not permit people to work beyond 65. • Health and safety concerns – rejected. • No knowledge – no legitimate expectation. • Not provided with any evidence which would suggest that the driver’s ability to cope in such situations is impacted by age. • If objective justification exists to support the application of age restriction in relation to the position on offer, then these should be transparent and advised to all potential applicants at the outset C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Case Law Examples Michael Fox v. Tedcastles Aviation Fuels Limited No explicit contractual arrangement between the Respondent and the Complainant with regard to an established retirement date Adjudication Officer accepted that the explanatory booklets and investment guides in relation to the pension scheme were provided to the Complainant on a number of occasions; Noted that they were of such a “technical nature” that it would be unreasonable for the Respondent to suggest that the Complainant should have understood that a mandatory retirement age of 65 was in existence and that this would apply to him. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Auto Enrolment Roadmap for Pensions Reform 2018 – 2023 Ambitious five year pension’s roadmap Automatic Enrolment Scheme (the “Scheme”) by 2022 On 22 August 2018, Minister Doherty launched a public consultation process More than 100 written responses C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 5

  6. Auto Enrolment Begin the process earlier Include the self- Include lower employed and earners home makers Common Themes Lower the Include over 60’s contributions Standardise tax relief C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Auto Enrolment Summary of progress in the design of an Automatic Enrolment Retirement Savings System for Ireland and next steps - October 2019. • Employees aged between 23 and 60, who earn more than €20,000 a year • Employees who are members of the AE system will initially contribute a minimum of 1.5% of gross earnings – that is, earnings before tax and PRSI deductions – for the first three years. • The contribution rate will increase by 1.5 percentage points every three years, to a maximum contribution rate of 6% at the beginning of year 10. • Employers will be required to make a matching (tax deductible) contribution on behalf of the employee at the specified contribution rate. • The employer contributions will be limited to a qualifying earnings threshold of €75,000, which will be reviewed over time. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Auto Enrolment There are four main areas where work is continuing in order to produce design options for Government to consider. The investment The pay- framework and Investment out phase funds to be offered framework by Registered Providers (including, importantly, the design of the The Central Processing Central default fund) The State Authority (and linked to Processing this, the functions to be financial Authority undertaken by the incentive Registered Providers) C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 6

  7. Key TakeAways Keep your retirement age under review Develop and review your policies Consider and review your objective justification Consider fixed term contracts Communication is key! Be Consistent! Use the WRC Code of Practice on Working Longer C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Independent Contractors C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E Independent Contractors Organisation of Working Time (Workers Rights and Bogus Self-Employment) (Amendment) Bill 2019. HotFoods v. Revenue Commissioners It seems to me that where it can be established that a driver carries out a service which the business was established to provide, the work of the drivers is integral to the business and is not merely accessary to it. The integral nature of the work of the drivers to this business raises the implication that in ordinary course they would be employees. B v. Yodel Network Limited - UK – referred to CJEU. C O R K D U B L I N G A L W A Y L O N D O N W W W . R D J . I E 7

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